UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA :

:

v. : Criminal Action No.: 21-93 (RC)

:

JOHN D. ANDRIES, : Re Document No.: 20

:

Defendant. :

MEMORANDUM OPINION

DENYING DEFENDANT’S MOTION TO DISMISS COUNTS I, II, AND III OF THE SUPERSEDING 

INDICTMENT

I. INTRODUCTION

Defendant John Andries is one of many charged with committing federal crimes during 

the breach of the United States Capitol on January 6, 2021. He moves to dismiss part of the 

Superseding Indictment filed against him on the ground that three of the charged counts are 

legally deficient. Count I alleges that Andries obstructed an “official proceeding” in violation of 

18 U.S.C. § 1512(c)(2), but Andries says the January 6 joint session of Congress to count and 

certify the electoral votes was not an official proceeding within the meaning of the statute. 

Alternatively, he argues that 18 U.S.C. § 1512(c)(2) is unconstitutionally vague under the Due 

Process Clause of the Fifth Amendment. Next, he claims that Counts II and III, which allege 

various unlawful activities in a restricted area that the Vice President was “temporarily visiting” 

in violation of 18 U.S.C. § 1752, must be dismissed because the Capitol Police (rather than the 

Secret Service) restricted the Capitol grounds on January 6 and because then-Vice President 

Pence was not “temporarily visiting” the Capitol that day. Andries’s as-applied vagueness 

challenge to § 1512(c)(2) is premature at the motion-to-dismiss stage, and each of his other
2

claims is incorrect as a matter of law. The Court denies Andries’s motion to dismiss Counts I, II, 

and III of the Superseding Indictment. 

II. BACKGROUND1

The Twelfth Amendment to the United States Constitution requires the President of the 

Senate—a position held by the Vice President, U.S. Const. art. I, § 3, cl. 4—to receive lists 

recording the votes of the Electoral College for President and to open and count them in the 

presence of the Senate and the House of Representatives. U.S. Const. amend. XII. In the 

Electoral Count Act of 1887, Congress added some detail to this constitutional procedure. That 

statute requires the Senate and House to gather in the Hall of the House of Representatives at 

1:00 p.m. on the sixth day of January after each meeting of the electors. 3 U.S.C. § 15. The 

President of the Senate then must open each state’s certificate reflecting its electoral vote and

announce the state’s vote. Id. Members of Congress may object to any state’s vote in writing. 

Id. If at least one member of the House and one Senator sign an objection, the Senate and House 

gather separately to consider it. Id. An individual Senator or Member of the House may speak

for up to five minutes regarding the objection; in all events debate on an objection may last no 

more than two hours in each House. Id. § 17. The statute provides for the scope and disposition 

of various potential objections; for example, “no electoral vote or votes from any State which 

shall have been regularly given by electors whose appointment has been lawfully certified to 

1 Other than those taken from the Superseding Indictment, the facts recounted in this 

section are for background only. The Court does not rely on them for its legal analysis of 

Defendant’s Motion to Dismiss, which must turn only on “the four corners of the indictment.” 

United States v. Montgomery, No. CR 21-46, 2021 WL 6134591, at *2 n.1 (D.D.C. Dec. 28, 

2021) (citation omitted). Nor does the Court purport to find any facts; that task will rest with the 

jury. Id. As explained below, the Court will assume for purposes of its legal analysis of 

Defendant’s Motion to Dismiss that the facts alleged in the Superseding Indictment are true. 
3

according to [the statute] from which but one return has been received shall be rejected, but the 

two Houses concurrently may reject the vote or votes when they agree that such vote or votes 

have not been so regularly given by electors whose appointment has been so certified.” Id. § 15.

At 1:00 p.m. on January 6, 2021, both houses of Congress, as well as then-Vice President 

Mike Pence, convened in a joint session in the Hall of the House of Representatives to carry out 

their constitutional and statutory duty “to certify the Electoral College vote in the 2020 

presidential election.” Montgomery, 2021 WL 6134591, at *2. Vice President Pence was, of 

course, under Secret Service Protection. Gov’t’s Opp’n Def.’s Mot. Dismiss Counts One, Two, 

and Three of the Superseding Indictment at 2 (“Opp’n”), ECF No. 22. And the United States

Capitol Police, the agency responsible for security at the United States Capitol and its grounds, 

had cordoned off an area around the Capitol with metal barriers, fencing, and signs saying that 

the area was closed. Opp’n at 2–3; see Superseding Indictment at 2, ECF No. 15. 

About thirty minutes into the session, certain members of Congress lodged an objection 

to Arizona’s vote; the Senate withdrew to its chambers so that the two Houses could consider the 

objection. Montgomery, 2021 WL 6134591, at *2. Meanwhile, then-President Trump and others 

spoke at a “Stop the Steal” rally in protest of the election results. See United States v. Munchel, 

991 F.3d 1273, 1275 (D.C. Cir. 2021). As is by now well known, a crowd, including attendees 

of the rally, advanced toward the Capitol. See Montgomery, 2021 WL 6134591, at *2. A large 

group massed on the steps outside the Capitol building. Opp’n at 3. 

According to a grand jury’s Superseding Indictment, Defendant John D. Andries was 

among this crowd. Superseding Indictment at 1–3. The government alleges that Andries entered 

the restricted Capitol area and engaged in disorderly or disruptive conduct there aimed at 

disrupting the certification proceeding. Id. Beyond that, the Superseding Indictment provides 
4

little detail about exactly what Andries allegedly did at the Capitol on January 6. It does, 

however, charge him with obstruction of an official proceeding and aiding and abetting in 

violation of 18 U.S.C. § 1512(c)(2) and 18 U.S.C. § 2 (Count I); entering and remaining in a 

restricted building and grounds, in violation of 18 U.S.C. § 1752(a)(1) (Count II); disorderly and 

disruptive conduct in a restricted building and grounds, in violation of 18 U.S.C. § 1752(a)(2) 

(Count III); disorderly conduct in a Capitol building, in violation of 40 U.S.C. § 5104(e)(2)(D) 

(Count IV); and parading, demonstrating, or picketing in a Capitol building, in violation of 40 

U.S.C. § 5104(e)(2)(G) (Count V). Id. 

Andries moved to dismiss Count I, Count II, and Count III under Federal Rule of 

Criminal Procedure Rule 12(b)(3)(v). Def.’s Mot. Dismiss Counts One, Two, and Three of the 

Superseding Indictment (“Def.’s Mot. Dismiss”), ECF No. 20. The Court heard oral argument 

on October 5, 2021, and the parties filed several supplemental briefs adding or expanding upon 

arguments thereafter. 

III. LEGAL STANDARD

“An indictment’s main purpose is to inform the defendant of the nature of the accusation 

against him.” United States v. Ballestas, 795 F.3d 138, 148–49 (D.C. Cir. 2015) (cleaned up). 

Thus, the Federal Rules of Criminal Procedure require only that the indictment include “a plain, 

concise, and definite written statement of the essential facts constituting the offense charged.” 

Fed. R. Crim. P. 7(c). A defendant may move to dismiss counts of an indictment for “failure to 

state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). A court considering such a motion must 

“assume[] the truth of th[e] factual allegations” in the indictment. Ballestas, 795 F.3d at 149. 

Indeed, the court’s review is limited to “the four corners of the indictment.” United States v. 

Ring, 628 F. Supp. 2d 195, 204 (D.D.C. 2009). This limitation “affords deference to the 
5

‘fundamental role of the grand jury.’” United States v. Mostofsky, No. CR 21-138, 2021 WL 

6049891, at *2 (D.D.C. Dec. 21, 2021) (quoting Ballestas, 795 F.3d at 148). “Adherence to the 

language of the indictment is essential because the Fifth Amendment requires that criminal 

prosecutions be limited to the unique allegations of the indictments returned by the grand jury.” 

United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). “A court accordingly cabins its 

analysis to the face of the indictment and, more specifically, the language used to charge the 

crimes.” Mostofsky, 2021 WL 6049891, at *2 (cleaned up).

IV. ANALYSIS

A. Count I, for Violation of 18 U.S.C. § 1512(c)(2), States an Offense

Count I charges that Andries “attempted to, and did, corruptly obstruct, influence, and 

impede an official proceeding, that is, a proceeding before Congress, specifically, Congress’s 

certification of the Electoral College vote as set out in the Twelfth Amendment of the 

Constitution of the United States and 3 U.S.C. §§ 15-18.” Superseding Indictment at 1. 

According to the government, this violated 18 U.S.C. § 1512(c)(2), which reads: 

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other 

object, or attempts to do so, with the intent to impair the object’s integrity 

or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, 

or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1512 (emphasis added). “Official proceeding” is defined in a subsequent section to 

include “a proceeding before Congress”: 

(a) As used in sections 1512 and 1513 of this title and in this section--

(1) the term “official proceeding” means--
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(A) a proceeding before a judge or court of the United States, a 

United States magistrate judge, a bankruptcy judge, a judge of the 

United States Tax Court, a special trial judge of the Tax Court, a 

judge of the United States Court of Federal Claims, or a Federal 

grand jury;

(B) a proceeding before the Congress;

(C) a proceeding before a Federal Government agency which is 

authorized by law; or

(D) a proceeding involving the business of insurance whose 

activities affect interstate commerce before any insurance regulatory 

official or agency or any agent or examiner appointed by such 

official or agency to examine the affairs of any person engaged in 

the business of insurance whose activities affect interstate 

commerce . . . .

18 U.S.C. § 1515(a) (emphasis added). Andries advances two reasons for his claim that Count I

fails to state an offense. First, he says that “[t]he Electoral Count on January 6 is not an ‘official 

proceeding,’” and, therefore, any obstruction of the meeting would be beyond the scope of 18 

U.S.C. § 1512(c)(2). Def.’s Mot. Dismiss at 6–7 (cleaned up). Second, he argues that “even if 

the Court determines that the Electoral Count is an ‘Official Proceeding,’ 18 U.S.C. §1512(c)(2) 

is unconstitutionally vague as applied . . . .” Id.at 9 (cleaned up); see United States v. Eshetu, 

863 F.3d 946, 952 (D.C. Cir. 2017), vacated on other grounds, 898 F.3d 36 (D.C. Cir. 2018) 

(“The defense of failure of an indictment to charge an offense includes the claim that the statute 

apparently creating the offense is unconstitutional.”). The Court rejects the statutory argument; 

it also rejects the vagueness argument to the extent it challenges the statute on its face. To the 

extent Andries raises an as-applied vagueness challenge, the Court holds that the claim is 

premature because its resolution would depend on facts not included in the Superseding 

Indictment. Therefore, the Court denies Andries’s motion to dismiss Count I.
7

1. The Electoral Count is an “Official Proceeding” 

Andries’s argument that the January 6 congressional count of electoral votes was not an 

“official proceeding” rests, as a first step, on assertions regarding 18 U.S.C. § 1512(c)(2)’s 

purpose and legislative history. Andries notes that Congress added § 1512(c)(2) as part of the 

Sarbanes-Oxley Act of 2002, “legislation designed to protect investors and restore trust in 

financial markets following the collapse of Enron Corporation,” which involved Enron’s 

auditor’s “systematic[] destr[uction] [of] potentially incriminating documents” related to 

accounting fraud.2 Yates v. United States, 574 U.S. 528, 532, 536–37 (2015); see United States 

v. Caldwell, No. 21-CR-28, 2021 WL 6062718, at *5 (D.D.C. Dec. 20, 2021); Def.’s Mot. 

Dismiss at 4–5. Andries further relies upon cases holding that a definition of “official 

proceeding” separate from the “proceeding before the Congress” definition that applies here—“a 

proceeding before a Federal Government agency which is authorized by law,” 18 U.S.C. 

§ 1515(a)(1)(C)—does or does not encompass various types of federal agency investigations 

depending on the investigation’s level of formality. Compare United States v. Perez, 575 F.3d 

164, 169 (2d Cir. 2009) (Bureau of Prison review panel procedure which involved the 

determination of whether there had been a policy violation, the issuance of findings, and a 

decision on whether to refer the matter to senior authorities, and was therefore “quasiadjudicative,” was “sufficiently formal” to constitute an “official proceeding”) with United States 

v. Ramos, 537 F.3d 439, 462–63 (5th Cir. 2008) (informal Border Patrol internal investigation 

2 Notably, however, § 1515, the section defining “official proceeding” to mean, among 

other things, “a proceeding before the Congress,” “dates to the Victim and Witness Protection 

Act of 1982, Pub. L. No. 92-291, § 4(a), 96 Stat. 1248, 1252.” United States v. McHugh, No. CR 

21-453, 2022 WL 296304, at *8 n.9 (D.D.C. Feb. 1, 2022). Therefore, “Sarbanes Oxley is 

almost entirely irrelevant to the interpretation of the phrase ‘a proceeding before the Congress.’” 

Id.
8

was not an “official proceeding” because “§ 1515(a)(1)(C) uses the preposition ‘before’ in 

connection with the term ‘Federal Government agency,’ which implies that an ‘official 

proceeding’ involves some formal convocation of the agency in which parties are directed to 

appear, instead of any informal investigation conducted by any member of the agency”) and

United States v. Ermoian, 752 F.3d 1165, 1171–72 (9th Cir. 2013) (FBI investigation was not an 

“official proceeding” in part because various surrounding sections of § 1512 refer to preventing 

witness testimony or attendance, preventing production of records or documents, and being 

absent from a proceeding to which one has been summoned by legal process, all of which 

“implie[d]” to the court “that some formal hearing before a tribunal is contemplated” in the term 

“official proceeding”); see Def.’s Mot. Dismiss at 5–6.

From this context, Andries concludes that § 1512(c)(2) is a “‘witness tampering’ statute” 

such that “‘official proceeding before the Congress’ contemplates the same type of ‘adversarial 

nature’ as court proceedings where there is a potential for witnesses to be influenced or 

documents to be destroyed”; in other words, “the obstruction must concern a proceeding 

involving adjudicative or at least ‘quasi-adjudicative responsibilities.’” Def.’s Mot Dismiss at 5–

6 (quoting Perez, 575 F.3d at 169). In the second step of his argument, Andries claims that the 

electoral count is a ceremonial formality, rather than “an adjudicative proceeding involving 

witness testimony and evidence.” Def.’s Mot. Dismiss at 7. 

Andries’s conclusion that an “official proceeding” must be an adjudicative proceeding 

skips several key stages of any sound interpretive analysis. For one thing, it does not begin with 

the text of the statute. Recall that Congress defined “official proceeding” as used in § 1512(c)(2) 

to mean, in relevant part, “a proceeding before the Congress.” 18 U.S.C. § 1515(a)(1)(B). The 

term “‘proceeding’ may be used . . . in a general sense to mean ‘[t]he carrying on of an action or 
9

series of actions; action, course of action; conduct, behavior.” Ermoian, 752 F.3d at 1169 (citing 

Proceeding, Oxford English Dictionary, https://www.oed.com/view/Entry/151779?

rskey=A9Qmdo&result=2&isAdvanced=false#eid (last visited Mar. 14, 2022)). The government 

suggests that this broad lay definition might be appropriate, Opp’n at 7–8, but the Court 

concludes that the narrower legal definition is a better interpretive fit. Ermoian, 752 F.3d at 

1170 (holding that the legal definition applies based on the modifier “official” and on the 

statute’s repeated use of terms associated with the legal sphere, including “Congress”); Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 73 (2012) (“[W]hen 

law is the subject, ordinary legal meaning is to be expected, which often differs from common 

meaning.”). In the legal sense, “proceeding” means “[t]he business conducted by a court or other 

official body; a hearing.” Proceeding, Black’s Law Dictionary (11th ed. 2019).3 Congress, 

when convened in the form of the joint electoral count session mandated by the Electoral Count 

Act, is plainly an “official body”; the certification of electoral votes is its “business” assigned by 

the Electoral Count Act and the Twelfth Amendment. Caldwell, 2021 WL 6062718, at *4. 

Of course, ascertaining the meaning of “proceeding” takes us only so far; the statute also 

requires that the proceeding be “before the Congress,” 18 U.S.C. § 1515(a)(1)(B) (emphasis 

added), and of course, that the proceeding be “official,” id. § 1512(c)(2). These modifiers 

reinforce the application of the narrow definition of “proceeding” and clarify the requirement

3 To be sure, there are legal definitions of proceeding that are narrower still, such as 

“[t]he regular and orderly progression of a lawsuit, including all acts and events between the time 

of commencement and the entry of judgment” or “[a]ny procedural means for seeking redress 

from a tribunal or agency.” Proceeding, Black’s Law Dictionary (11th ed. 2019). But these 

plainly cannot have been the definitions Congress had in mind when it wrote of “a proceeding 

before the Congress,” because Congress does not adjudicate lawsuits, is not an “agency,” and 

does not hold any “tribunal[s]” (with the possible limited exceptions of impeachment and 

judging the qualifications of its own members, discussed below). 
10

that the relevant proceeding be a “formal convocation” of the relevant entity (here Congress), as 

opposed to some informal action in which the entity or its members engage. Cf. Ramos, 537 

F.3d at 562 (interpreting the phrase “a proceeding before a Federal Government agency which is 

authorized by law,” 18 U.S.C. § 1515(a)(1)(C)); see Montgomery, 2021 WL 6134591, at *5

(relying in part on the fact that “official proceeding before the Congress” appears as part of a 

definitional list referring to proceedings before a judge or court, a federal agency, and insurance 

regulatory agencies and examiners); United States v. Sandlin, No. 21-CR-88, 2021 WL 5865006, 

at *3 (D.D.C. Dec. 10, 2021) (citing Official, def. 5, Oxford English Dictionary (3d ed. 2004) to 

note that “official” means “formal” and “ceremonious”). So, to sum up, a “proceeding before the 

Congress” is a formal convocation at which Congress has convened to conduct its official 

business. 

Thus, a vote on pending legislation is likely “a proceeding before the Congress,” as is a 

committee hearing at which sworn witnesses appear; an individual member’s hosting of a 

meeting of constituents in her office might not be. The Court need not delineate the precise 

contours of formality necessary to constitute an official proceeding to resolve this case, nor need 

it decide precisely what does and does not count as Congress’s official business: any reasonable 

understanding of these concepts would include the joint electoral count session. As Judge 

Friedrich recently explained, there is a wealth of indicators that the electoral count session is a 

formal convocation for the carrying out of Congress’s official business: 

The Constitution requires the Vice President, acting as President of the Senate, to 

“open all the certificates” of the electoral results “in the presence of the Senate and 

House of Representatives.” U.S. Const., art. II, § 1, cl. 3; id. amend. XII. The 

“votes shall then be counted.” Id. The Electoral Count Act, Pub. L. No. 45-90, 24 

Stat. 373 (1887), specifies the procedures to be followed. A Joint Session of the 

Senate and the House of Representatives must meet “at the hour of 1 o’clock in the 

afternoon” on “the sixth day of January succeeding every meeting of the electors.” 

3 U.S.C. § 15. The presiding officer (the President of the Senate) opens the 
11

certificates of the electoral votes and hands them to tellers appointed by each 

House, who make a list of the votes. Id. When announcing each certificate, the 

presiding officer calls for objections, if any, which must be made in writing and 

signed by both one Senator and one Member of the House of Representatives. Id.

Thereafter, the Senate and the House withdraw to consider each objection, and 

“each Senator and Representative may speak to such objection or question five 

minutes, and not more than once.” Id. § 17. The presiding officer must cut the 

debate off after two hours. Id. He also has the “power to preserve order” during 

the session. Id. § 18. The Act details where the presiding officer, the Speaker, the 

Senators, the Representatives, the tellers, and others are to sit in the chamber. Id.

§ 16. And it commands that the session “not be dissolved until the count of electoral 

votes shall be completed and the result declared.” Id.

Sandlin, 2021 WL 5865006, at *4.4 

4

Judge Bates recently concluded that the word “before” does more than denote a formal 

convocation; it also means that “a second party must be integrally involved in the ‘proceeding’ in 

order for it to be ‘before’ the Congress.” McHugh, 2022 WL 296304, at *5 (concluding that the 

January 6th certification met this qualification, because though not physically present, the 

members of the Electoral College are external parties integrally involved in the proceeding 

because their votes are certified at the proceeding). Judge Bates’s well-reasoned opinion relied 

in part on Ramos, 537 F.3d at 462–463 (the use of “before” “implies that an ‘official proceeding’ 

involves some formal convocation of the agency in which parties are directed to appear” 

(emphasis added) and Ermoian, 752 F.3d at 1171 (“The use of the preposition ‘before’ suggests 

an appearance in front of the agency sitting as a tribunal . . . . [A] criminal investigation does not 

occur ‘before a Federal Government agency’ like a hearing or trial might; it is conducted ‘by’ the 

agency in the field”). However persuasive this interpretation of “before” may have been in the 

context of the “proceeding before a Federal Government agency which is authorized by law” 

definition at issue in Ramos and Ermoian, the Court concludes that Congress could not have 

intended “before” to require a second party external to Congress in the context of “a proceeding 

before the Congress.” This is because, as Judge Moss has explained, Congress routinely uses the 

word “before” to describe congressional proceedings that do not involve an external party: 

To take an example from the year Congress enacted Section 1515, a markup was 

held “Before the Committee on Foreign Affairs” on six resolutions concerning 

human rights in the former Soviet Union. H. Res. 200; H. Con. Res. 218; H.J. Res. 

230; H. Con. Res. 205; H.J. Res. 373; H. Res. 269: Markup Before the H. Comm. 

on Foreign Affs. and its Subcomm. on Human Rts. & Int’l Orgs., 97th Cong. I 

(1982) (emphasis added). Although that proceeding took place before the 

Committee, “no witnesses” appeared. Id. at III. That example, moreover, is far 

from unusual; proceedings often occur “before” congressional committees and 

without witnesses or “parties.” See, e.g., Markup to Consider Three Joint 

Resolutions Relating to Lebanon and the War Powers Resolution: S.J. Res. 159; 

S.J. Res. 163; and S.J. Res. 166: Hearing Before the S. Comm. on Foreign Rels., 

98th Cong. I (1983); NASA Management Reorganization Act of 1993: Markups 

Before the H. Comm. on Sci., Space & Tech., 103rd Cong. I (1993). 
12

Notably, this analysis of the text and immediate context yields nothing to suggest that “a 

proceeding before the Congress” must be adjudicative in nature. Indeed, such a requirement 

would be “inconsistent” with the text “proceeding before the Congress.” McHugh, 2022 WL 

296304, at *8. The reason is simple: Congress hardly ever adjudicates. See Adjudicate, Oxford 

English Dictionary, https://www.oed.com/view/Entry/2456?redirectedFrom=adjudicate#eid (last 

visited Mar. 24, 2022) (defined most broadly, “adjudicate” means “[t]o settle, determine, or 

decide judicially, or by a similar legal or official process. Also more generally: to judge; to act 

as a referee in.”). Congress gathers information and then votes on legislation; it can hardly be 

said to “adjudicate” the bills before it. “As a matter of separation of powers, that is not what 

Congress does. To be sure, Congress’s legislative powers include the implicit authority to 

summon witnesses, to elicit testimony, and to investigate facts about the world. In other words, 

‘each House has power to secure needed information in order to legislate.’” Montgomery, 2021 

WL 6134591, at *7 (quoting Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) 

(emphasis added in original and internal quotation marks omitted)). “Section 1515(a)(1) reaches 

all three branches of government, and the definition of ‘official proceeding’ is properly 

understood in the unique context of each branch.” Id. Thus, even assuming the soundness of 

conclusions like those in Perez, 575 F.3d at 169, i.e. that “quasi-adjudicative responsibilities” are 

at least sufficient to meet the § 1515(a)(1)(C) definition relevant to executive branch agencies—

whose responsibilities frequently do involve adjudication—they cannot fully define “proceeding 

before the Congress” in § 1515(a)(1)(B). Cf. United States v. Kelley, 36 F.3d 1118, 1127–28 

(D.C. Cir. 1994) (holding that an administrative investigation was a “proceeding” within the 

Montgomery, 2021 WL 6134591, at *8. The Court agrees with Judge Moss that “Congress 

undoubtedly understood this common usage—that is, its own usage—when it enacted 

Section 1515(a)(1).” Id.
13

meaning of 18 U.S.C. § 1505 because the agency inspector had “some adjudicative power” in 

that he could “issue subpoenas and . . . compel sworn testimony,” and assuming without deciding 

that “proceeding” in § 1505 and in § 1512 carried the same meaning). With the exception of 

those rare instances in which Congress might be said to adjudicate, namely impeachments and 

when judging the qualifications of its own members, Montgomery, 2021 WL 6134591, at *7 

(citing U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 6; id. art. I, § 5, cl. 1), understanding 

“proceeding before the Congress” to refer solely to adjudicative proceedings would make the 

definition “something close to a null set,” McHugh, 2022 WL 296304, at *8. If that were what 

Congress wanted, it would have been far easier simply to prohibit obstruction of impeachment or 

qualification proceedings. The Court will not assume that Congress intended to enact such a 

narrow provision by using such broad language. 

Even a softer read of Andries’s proposed interpretation—perhaps a “proceeding before 

the Congress” need not be adjudicative in the sense just described, but still must involve a 

proceeding “where there is a potential for witnesses to be influenced or documents to be 

destroyed,” Def.’s Mot. Dismiss at 5—finds no support in the text, and weakens further when 

faced with broader statutory context. Andries says that an “official proceeding,” in the 

congressional context, must be akin to a hearing, and that the electoral count does not qualify 

because it is “ceremonial and predetermined in nature.” Def.’s Second Suppl. Br. Supp. Mot. 

Dismiss Counts One, Two, and Three of the Superseding Indictment at 2 (“Def.’s Second Suppl. 

Br.”), ECF No. 39. But this emphasis on Congress’s and the Vice President’s lack of discretion

in certifying the electoral vote does not answer the question asked by the Court’s interpretation 

of “proceeding before the Congress” to mean a formal convocation of Congress for the purpose 

of conducting its official business. Congress’s electoral count authority surely is limited, see 3 
14

U.S.C. § 15, but this does not change the fact that the electoral count is a constitutionally and 

statutorily mandated formal convocation of a joint session of Congress for the purpose of 

conducting the official, constitutionally-assigned business of certifying the electoral vote. 

Andries relies heavily on the Black’s Law Dictionary definition of “proceeding” quoted 

above: “[t]he business conducted by a court or other official body; a hearing.” Proceeding, 

Black’s Law Dictionary (11th ed. 2019) (emphasis added). But this definition lists a hearing as 

one example of a broader category of official body business; “a hearing” is not the entire 

definition. Contrast Black’s Law Dictionary’s separate entry for “Adjudicatory Proceeding,” 

which reads entirely “See adjudication hearing under [the entry for] HEARING.” Adjudicatory

Proceeding, Black’s Law Dictionary (11th ed. 2019); see Hearing, Black’s Law Dictionary (11th 

ed. 2019) (defining “adjudication hearing” to include certain types of administrative agency, 

child abuse, and juvenile delinquency hearings). This structure makes clear that not every 

“proceeding” is an adjudication or a hearing. Andries also notes that 3 U.S.C. § 15 describes the 

electoral count as a “meet[ing],” which to him suggests a category distinct from “proceeding.” 

Def.’s Second Suppl. Br. at 3. But as the Court has explained, “a proceeding before Congress” is 

a formal convocation of Congress for the purpose of conducting official business—in other 

words, a type of meeting. Finally, Andries briefly points out that the Constitution uses the term 

“proceeding” in relation to Congress only to refer to actions taken by individual Houses, not the 

House and Senate together. Id., U.S. Const. art. I, § 5, cl. 2–3 (“Each House may determine the 

Rules of its Proceedings . . . Each House shall keep a Journal of its Proceedings”). But nothing 

about the Constitution’s usage suggests that “proceeding” must refer exclusively to actions solely 

within one House, rather than being merely inclusive of them. 
15

Unlike adjudications, Congress does frequently hold investigative hearings at which 

witnesses appear. But a nearby provision shows that Congress would have known how to limit 

its definition to such proceedings if it wished. Section 1505 criminalizes the obstruction of “the 

due and proper exercise of the power of inquiry under which an inquiry or investigation is being 

had by either the House, or any committee of either House or any joint committee of the 

Congress.” 18 U.S.C. § 1505; see Caldwell, 2021 WL 6062718, at *5 (noting that “[t]his has 

been part of the U.S. Code since at least 1962”). But instead of drafting a provision targeted at 

investigative hearings for inclusion in § 1515(a)(1) (and, by reference, § 1512(c)), Congress used 

the much broader terms “official proceeding” and “proceeding before the Congress.” 18 U.S.C. 

§§ 1512(c), 1515. The Court will not limit the statute in a way Congress chose not to. See 

Caldwell, 2021 WL 6062718, at *5; United States v. Nordean, No. CR 21-175, 2021 WL 

6134595, at *5 (D.D.C. Dec. 28, 2021); Montgomery, 2021 WL 6134591, at *6. 

In sum, the Court holds that a “proceeding before the Congress,” 18 U.S.C. 

§ 1515(a)(1)(C), extends to formal convocations of Congress for the purpose of conducting 

official business, see Montgomery, 2021 WL 6134591, at *9, and that the January 6th, 2021 joint

session of Congress to certify the electoral vote was such a proceeding. Andries’s assertions 

about purpose and legislative history are not persuasive; even if they were, they could not 

override the unambiguous plain meaning of the statute in context.

5

 Because the Court does not 

agree with Andries that a “proceeding before the Congress” must be adjudicative in nature, the 

5 Andries briefly alludes to the rule of lenity, Def.’s Mot. Dismiss at 2, but the Court’s 

conclusion that the terms “official proceeding” and “proceeding before the Congress” 

unambiguously do not require the sort of adjudication or hearing Andries envisions precludes 

application of that rule here. The rule of lenity “only applies if, after considering text, structure, 

history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that 

the Court must simply guess as to what Congress intended.” Nordean, 2021 WL 6134595 at *12 

(quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). 
16

Court need not address the second step of Andries’s argument, that the electoral count 

proceeding is not adjudicative. The Court does note, however, that other judges in this District 

have confronted similar arguments and held, as an alternative to concluding that a “proceeding 

before the Congress” need not be adjudicative, that the electoral count is in some sense 

adjudicative because it may involve the consideration of and decisions on disputed objections. 

Caldwell, 2021 WL 6062718, at *7; Nordean, 2021 WL 6134595, at *6. The Court denies 

Andries’s motion to dismiss Count I to the extent it relies on the theory that the January 6th 

electoral count was not an “official proceeding.” 

2. Section 1512(c)(2) is Not Void for Vagueness under the Fifth Amendment, and Andries’s AsApplied Vagueness Claim is Premature

Andries alternatively attacks the Count I charge on the ground that the terms “corruptly,” 

“otherwise obstructs, influences, or impedes,” and “official proceeding” in 18 U.S.C.

§ 1512(c)(2) are unconstitutionally vague under the Due Process Clause of the Fifth Amendment. 

Def.’s Mot. Dismiss at 9–14. The Fifth Amendment imposes a clarity requirement on criminal 

statutes, requiring Congress to “give ordinary people fair notice of the conduct [a law] punishes” 

and to include sufficient standards so that the law does not “invite[] arbitrary enforcement.” 

Johnson v. United States, 576 U.S. 591, 595 (2015). “[T]he touchstone is whether the statute, 

either standing alone or as construed, made it reasonably clear at the relevant time that the 

defendant’s conduct was criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997) (emphasis 

added). Thus, “clarity at the requisite level may be supplied by judicial gloss on an otherwise 

uncertain statute.” Lanier, 520 U.S. at 266; see also United States v. Morison, 844 F.2d 1057, 

1071 (4th Cir. 1988) (“[A]ll vagueness may be corrected by judicial construction which narrows 

the sweep of the statute within the range of reasonable certainty.”). Moreover, the Constitution 

does not require absolute precision of language. The Fifth Amendment is “not concerned with 
17

vagueness in the sense that the term requires a person to conform his conduct to an imprecise but 

comprehensible normative standard, whose satisfaction may vary depending upon whom you 

ask. Rather, a statute is unconstitutionally vague if, applying the rules for interpreting legal 

texts, its meaning specifies no standard of conduct at all.” United States v. Bronstein, 849 F.3d 

1101, 1107 (D.C. Cir. 2017) (cleaned up). “[T]he ‘mere fact that close cases can be envisioned’ 

does not ‘render[ ] a statute vague’—‘[w]hat renders a statute vague is not the possibility that it 

will sometimes be difficult to determine whether the incriminating fact it establishes has been 

proved; but rather the indeterminacy of precisely what that fact is.’” Montgomery, 2021 WL 

6134591, at *18 (quoting United States v. Williams, 553 U.S. 285, 305–06 (2008)).

Andries has briefed only an as-applied vagueness claim. Def.’s Mot. Dismiss at 9; Def.’s 

Second Suppl. Br. at 5; Def.’s Reply Gov’t’s Resp. Mot. Dismiss Counts One, Two, and Three 

of the Superseding Indictment at 4–7 (“Reply”), ECF No. 23. At oral argument, however, 

defense counsel asserted that 18 U.S.C. § 1512(c)(2) was vague on its face. As explained below, 

the Court concludes that an as-applied challenge is premature at the motion-to-dismiss stage in 

this case. The Court further holds that Andries forfeited his opportunity to bring a facial 

vagueness challenge by failing to brief such a claim. See United States v. Pole, No. 09-cr-354, 

2021 WL 5796518, at *6 (D.D.C. Dec. 7, 2021); United States v. Johnson, No. 02-cr-310, 2021 

WL 3737681, at *4 (D.D.C. Aug. 24, 2021). Out of an abundance of caution, and to avoid the 

harshness of relying on forfeiture alone to deny a criminal defendant the chance to argue that he 

is being prosecuted under an unconstitutional statute, the Court alternatively addresses the merits 

of the facial vagueness claim and holds that it fails. Accordingly, the Court denies Andries’s 

motion to dismiss Count I of the Superseding Indictment. 
18

The as-applied vagueness challenge is premature. Recall that the Court’s review at the 

Rule 12 motion-to-dismiss stage is limited to ‘the four corners of the indictment,’” Ring, 628 F. 

Supp. 2d at 204, and that the indictment in this case is not a “speaking indictment.” It does not 

tell us exactly how the government intends to prove that Andries “obstruct[ed], influenc[ed] and 

imped[ed]” Congress’s certification of the electoral vote6or how the government hopes to prove 

that he did so “corruptly.” Superseding Indictment at 1; 18 U.S.C. § 1512(c)(2). “For an asapplied challenge, an ‘implicit requirement’ is ‘that it must be clear what the defendant did.’” 

United States v. Reffitt, No. 21-cr-32, Dkt. No. 81, slip op. at 5 (D.D.C. Dec. 29, 2021) (quoting 

United States v. Raniere, 384 F. Supp. 3d 282, 320 (E.D.N.Y. 2019)). Count I alleges what 

Andries did only in the broadest sense. It says he “attempted to, and did, corruptly obstruct, 

influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, 

Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the 

Constitution of the United States and 3 U.S.C. §§ 15-18.” Superseding Indictment at 1. In its 

brief opposing the motion to dismiss, the government contends, without citation, that Andries 

entered the Capitol through a broken window, pulled or attempted to pull the fire alarm, 

“confronted law enforcement officers inside the building[,] and refused to leave the Capitol 

grounds, forcing officers to physically remove him.” Opp’n at 4–5, 19. But these details do not 

help an as-applied analysis at this stage, as the Court may not consider unsupported allegations in 

a brief when deciding a Rule 12 motion to dismiss. See Reffitt, slip op. at 6 (refusing to consider 

government’s claim in a brief that the defendant “charged at officers with the intent to obstruct” 

6 To the extent Andries’s as-applied challenge asserts that the term “official proceeding” 

is unconstitutionally vague, it is ripe and fails on the merits. See Def.’s Mot. Dismiss at 10. As 

the Court has explained, the January 6th electoral count Andries is charged with obstructing 

unambiguously was an “official proceeding.” 
19

the electoral count proceeding when evaluating a motion-to-dismiss as-applied vagueness 

challenge to a § 1512(c)(2) charge). Put differently, Andries disputes at least some of the 

allegations found in the government’s brief. Def.’s Second Suppl. Br. at 7 n.3 (“[T]here is no 

evidence that [Andries] pulled the fire alarm.”). The Court must accept the allegations in the

Superseding Indictment as true for purposes of this Rule 12 motion, but it may not replace the 

jury as the decider of factual disputes between the parties. See Ballestas, 795 F.3d at 149. 

The facts that the Court must accept as true at this stage—those in the Superseding 

Indictment—are insufficient to resolve Andries’s as-applied vagueness challenge one way or the 

other. As the Court will explain, 18 U.S.C. § 1512(c)(2) applies with clarity to a certain range of 

conduct, but “there may be scenarios at the edges that present vagueness problems.” Sandlin, 

2021 WL 5865006, at *10. Without any specific facts in the Superseding Indictment, the Court 

cannot evaluate whether Andries’s conduct fell closer to the clear core or the vaguer edges of the 

statute’s coverage, and, accordingly, whether he had “fair notice,” Johnson, 576 U.S. at 596, that 

his conduct violated § 1512(c)(2). “Rule 12 permits pretrial resolution of a motion to dismiss the 

indictment only when trial of the facts surrounding the commission of the alleged offense would 

be of no assistance in determining the validity of the defense.” Reffitt, slip op. at 6 (quoting 

United States v. Pope, 613 F.3d 1255, 1259 (10th Cir. 2010) (Gorsuch, J.)). Because the Court 

would need more facts to pass upon an as-applied vagueness challenge, it denies Andries’s asapplied vagueness challenge to Count I as premature. Compare Sandlin, 2021 WL 5865006, at 

*14 (reaching the merits of a motion-to-dismiss as-applied vagueness challenge to § 1512(c)(2) 

charges where the indictment “allege[d] that the defendants engaged in advance planning, 

forcibly breached the Capitol building, assaulted Capitol police officers, and encouraged others 

to steal laptops and paperwork from the Senate Chamber”) with Reffitt, slip op. at 6 (denying a 
20

motion-to-dismiss-as-applied vagueness challenge as premature because the court could not 

determine whether the defendant had sufficient notice “based on the indictment alone,” which, as 

supplemented by a Bill of Particulars, alleged only that the defendant violated § 1512(c)(2) “by 

stopping, or attempting to stop, the [electoral count] proceeding from going forward on time, 

with the members of Congress present and able to examine the electoral results”); see United 

States v. Kettles, No. CR 16-00163-1, 2017 WL 2080181, at *3 (M.D. Tenn. May 15, 2017) (“In 

considering [the defendant’s] motion to dismiss the indictment . . . the court cannot make any 

determinations regarding the facts underlying the offense . . . The court cannot determine the 

nature and extent of [the defendant’s] conduct in this case and, therefore, also cannot determine 

whether [18 U.S.C.] § 1591(a) is void for vagueness as applied to that conduct.”), aff’d, 970 F.3d 

637 (6th Cir. 2020); Raniere, 384 F. Supp. 3d at 320 (holding that the defendant had to “wait to 

bring an as-applied vagueness challenge [to an 18 U.S.C. § 1591(a) charge] until the facts ha[d]

been established by evidence introduced at trial and the fact-finder ha[d] had an opportunity to 

weigh in” (citation omitted)); United States v. Poulin, 588 F. Supp. 2d 58, 61–62 (D. Me. 2008) 

(“The Court must dismiss the as applied motion to dismiss, since it relies on facts not alleged in 

the Indictment and those facts constitutionally require resolution by a jury.”); Gov’t’s Resp.

Def.’s Second Suppl. Br. at 7, ECF No. 40 (requesting such a disposition in this case). 

As an alternative to the Court’s holding that Andries forfeited the opportunity to present 

a facial vagueness challenge, a facial challenge fails on the merits. It is difficult to mount a 

successful facial challenge on vagueness grounds. For many years, a litigant could prevail on a 

facial vagueness challenge only upon a showing that the law “is impermissibly vague in all of its 

applications.” Vill. of Hoffman Ests. v. Flipside, Inc., 455 U.S. 489, 495 (1982). The Supreme 

Court cast some doubt on this strict standard in Johnson v. United States when it highlighted 
21

previous Supreme Court holdings to “contradict the theory that a vague provision is 

constitutional merely because there is some conduct that clearly falls within the provision’s 

grasp.” 576 U.S. at 602–03 (citing United States v. L. Cohen Grocery Co., 255 U.S. 81, 89

(1921), which held that a law banning “unjust or unreasonable” grocery rates was void for 

vagueness, even though one could surely imagine some rates that would be clearly unjust or 

unreasonable, such as “charging someone a thousand dollars for a pound of sugar”). Thus, 

Johnson held that “the existence of some” actions that “obviously” fell within the statutory 

clause at issue in Johnson did not “establish the . . . clause’s constitutionality.” Id. at 603. The 

D.C. Circuit has not “decid[ed] the full implications of Johnson.” United States Telecom Ass’n 

v. FCC, 825 F.3d 674, 736 (D.C. Cir. 2016); see also Robinson v. District of Columbia, 234 F. 

Supp. 3d 14, 19 (D.D.C. 2017). In one instance, the D.C. Circuit noted Johnson’s apparent 

departure from the Hoffman standard, but went on to reject a facial vagueness challenge because 

the claim fell “far short of the ‘impermissibly vague in all of its applications’” standard. Crooks 

v. Mabus, 845 F.3d 412, 417 (D.C. Cir. 2016) (emphasis added). Thus, to the extent Johnson

softened the Hoffman standard, the current standard holds that the mere existence of “some”

actions that “obviously” fall within a statute’s ambit does not establish its constitutionality. See 

Johnson, 576 U.S. at 603. But if a statute clearly applies to a great many actions, it is not invalid 

on its face. United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of 

offenses to which the statute is directed is plainly within its terms, the statute will not be struck 

down as vague even though marginal cases could be put where doubts might arise.”); see 

Crooks, 845 F.3d at 417 (asking whether a challenged statute fell “far short” of the Hoffman

standard). Another way of understanding the current standard is to return to the first principles 

of the vagueness doctrine: “[A] statute is unconstitutionally vague if, applying the rules for 
22

interpreting legal texts, its meaning specifies no standard of conduct at all.” Bronstein, 849 F.3d 

at 1107; see United States Telecom Ass’n, 825 F.3d at 736 (noting Johnson and holding that a 

statute passed vagueness muster “even if [the court did] not apply Hoffman’s elevated bar for 

facial challenges” because the statute “g[ave] sufficient notice to affected entities of the 

prohibited conduct”). 

As in Crooks, Andries’s vagueness challenge to § 1512(c)(2) not only fails to show that 

the statute is impermissibly vague in all its applications, it “falls far short of” doing so. 845 F.3d 

at 417. The Court need not tarry long over Andries’s argument that the term “official 

proceeding” is unconstitutionally vague. As the Court has explained, the term has a 

straightforward, readily discernible meaning, at least when defined by § 1515(a)(1)(B) to mean 

“a proceeding before the Congress”: a formal convocation at which Congress has convened to 

conduct its official business. Contrary to Andries’s suggestion in his brief, the fact that courts 

such as those in Ramos and Ermoian have had to engage in interpretive analysis to determine 

whether certain investigations qualify as official proceedings—and that this Court and others 

have had to do so to determine whether the January 6th electoral count proceeding was an 

official proceeding—does not render the statute vague. Def.’s Mot. Dismiss at 5, 11. “The need 

to examine statutory language, determine its meaning, and apply it to a specific factual situation 

is not evidence of a constitutionally defective statute—it is the ordinary work of judging in the 

age of statutes.” McHugh, 2022 WL 296304, at *12 (citing Williams, 553 U.S. at 306). 

Andries’s assertion that the phrase “otherwise obstructs, influences, or impedes any 

official proceeding, or attempts to do so,” 18 U.S.C. § 1512(c)(2), is an impermissibly vague 

“residual clause” fares no better. Def.’s Mot. Dismiss at 10. Andries’s reliance on Johnson is 

misplaced. There, the Supreme Court held that the residual clause of 18 U.S.C.
23

§ 924(e)(2)(B)(ii)—which made a previous conviction a predicate for a sentence enhancement if 

it “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that 

presents a serious potential risk of physical injury to another”—was unconstitutionally vague 

not because it was a catch-all clause that used the word “otherwise,” but rather because of the 

uncertainty inherent in the phrase “serious potential risk” and the need to apply that term to “an 

idealized ordinary case of the crime” rather than to the actual facts of the case. Johnson, 576 

U.S. at 597–98 (emphasis added to highlight the unconstitutionally vague language). Section 

1512(c)(2) does not present those concerns. It simply requires the application of terms with 

“noncontroversial” definitions (obstruct, impede, and influence) to the defendant’s actions. See 

Montgomery, 2021 WL 6134591, at *10 (collecting dictionary definitions to conclude that 

§ 1512(c)(2) prohibits “coming in the way of, blocking, or holding up the business conducted by 

an official body”). And the term “otherwise” suggests that the statute prohibits obstructing, 

influencing, or impeding an official proceeding in any way; that is, in ways other than the 

destruction, alteration, mutilation, and concealment of documentary evidence prohibited in 

§ 1512(c)(1). See Nordean, 2021 WL 6134595, at *6–8; Montgomery, 2021 WL 6134591, at 

*11–18; United States v. Petruk, 781 F.3d 438, 447–48 (8th Cir. 2015). Read this way, 

§ 1512(c)(2) is a broad, catch-all prohibition—it reaches a wide range of obstructive actions—

but it is not a vague one.7 Moreover, every court of appeals to have faced the question has 

interpreted § 1512(c)(2) to include a requirement that the obstructive act have a nexus with a 

7

In United States v. Miller, the court interpreted § 1512(c)(2) narrowly to reach only 

action taken “with respect to a document, record or other object.” No. 21-cr-00119, Dkt. No. 72, 

slip op. at 28 (D.D.C. Mar. 7, 2022). Neither party has presented to the Court a position 

regarding whether Miller’s narrow interpretation or the broader reading found in such cases as 

Montgomery and Nordean is correct, so the Court does not definitively decide that question 

today. For now, it suffices to conclude that even the broader reading is not vague, and that 

Miller’s narrower reading, if correct, would only further mitigate any vagueness concern. 
24

specific official proceeding. Montgomery, 2021 WL 6134591, at * 20 (collecting cases). This 

means that the “charged conduct must have the ‘natural and probable effect of interfering with’ 

an official proceeding and the accused must have ‘know[n] that his actions [were] likely to 

affect’ a particular proceeding.” Id. (quoting United States v. Aguilar, 515 U.S. 593, 599 (1995)). 

This narrowing gloss further insulates the catch-all clause from any facial vagueness concern. 

Andries’s most substantial challenge is to the statute’s use of the word “corruptly,” but 

this, too, ultimately falls short. He relies heavily on United States v. Poindexter, 951 F.2d 369, 

379–80 (D.C. Cir. 1991), in which the D.C. Circuit observed that “in the absence of some 

narrowing gloss,” the term “corrupt” is vague in that it might be defined with reference to 

subjective terms whose meanings can vary according to the moral values of the beholder, such as

“‘depraved,’ ‘evil,’ ‘immoral,’ ‘wicked,’ and ‘improper.’” Poindexter held that 18 U.S.C. 

§ 1505’s prohibition on “corruptly . . . influenc[ing], obstruct[ing], or imped[ing]” congressional 

inquiries was unconstitutionally vague as applied to a defendant who was accused of making 

false statements to Congress. 951 F.2d at 377, 386. Several judges in this district have 

encountered similar arguments and have persuasively explained why Poindexter’s holding and 

reasoning were limited to the facts it confronted and do not support a conclusion that “corruptly” 

as used in § 1512(c) is unconstitutionally vague. Importantly, Poindexter turned in significant 

part on the fact that “corruptly” is used transitively in § 1505—i.e., in the sense of corruptly 

causing another person to act—and the difficulty in applying such a term to a defendant who was 

accused of lying himself. Id. at 379. But § 1512(c) “favors an intransitive reading of the word 

‘corruptly,’” in that it focuses on how a defendant acts, not how he causes another person to act. 

Nordean, 2021 WL 6134595, at *10. Rather than rehash the remaining details of Poindexter, the 

Court notes its agreement with its colleagues’ analyses, the key points of which are that “(1) 
25

Poindexter turned on the specific language of 18 U.S.C. § 1505 and the specific charge in that 

case—that is, lying to Congress; (2) ‘[i]n the end, the [D.C. Circuit] did not conclude that 

“corruptly” [even as used] in [S]ection 1505 was “unconstitutionally vague as applied to all 

conduct;”’ and (3) ‘[m]uch has transpired in the four decades that have passed since 

Poindexter.’” Montgomery, 2021 WL 6134591, at *18 (quoting Caldwell 2021 WL 6062718, at 

*8–10)); see also Sandlin, 2021 WL 5865006, at *11; McHugh, 2022 WL 296304, at *10; 

Nordean, 2021 WL 6134595, at *10; Mostofsky, 2021 WL 6049891, at *11. 

Post-Poindexter developments include numerous judicial interpretations of the term 

“corruptly” in various obstruction statutes. In Arthur Andersen LLP v. United States, the

Supreme Court relied on dictionary definitions of “knowing” and “corrupt” to hold that the 

phrase “knowingly . . . corruptly persuad[e]” in 18 U.S.C. § 1512(b) required “conscious[ness] 

of wrongdoing.” 544 U.S. 696, 705–06 (2005). Dictionary definitions made clear to the 

Supreme Court that “corruptly” is “normally associated with wrongful, immoral, depraved, or 

evil.” Id. The Supreme Court did not suggest that the phrase “knowingly . . . corruptly,” defined 

to mean with “consciousness of wrongdoing,” was vague. 

Arthur Andersen is instructive, but does not fully resolve Andries’s vagueness challenge 

to § 1512(c). The Supreme Court’s “consciousness of wrongdoing” interpretation turned in part 

on § 1512(b)’s inclusion of the word “knowingly,” a word absent from § 1512(c). Arthur 

Andersen, 544 U.S. at 705 n.9; see United States v. Watters, 717 F.3d 733, 735 (9th Cir. 2013). 

Moreover, the Court relied on dictionary definitions of “corrupt,” including “wrongful, immoral, 

depraved, [and] evil,” Arthur Andersen, 544 U.S. at 705, that might be susceptible to 

Poindexter’s observation that such terms “afford ‘an almost boundless area for individual 

assessment of the morality of another’s behavior.’” Poindexter, 951 F.2d at 378 (D.C. Cir. 1991)
26

(citation omitted); see Sandlin, 2021 WL 5865006, at *12 (citing Poindexter, 951 F.2d at 379); 

Williams, 553 U.S. 285 at 306 (“[W]e have struck down statutes that tied criminal culpability to 

whether the defendant’s conduct was ‘annoying’ or ‘indecent’—wholly subjective judgments

without statutory definitions, narrowing context, or settled legal meanings.” (emphasis added)). 

Notably, however, Arthur Andersen did not adopt the most subjective of these 

definitional terms, like “immoral, depraved, or evil”; instead, it interpreted corrupt to mean

“wrongful.” 544 U.S. at 705–06 (to “knowingly . . . corruptly persuade” means to be “conscious 

of wrongdoing” (emphasis added)). And the courts of appeals have built upon this focus to 

interpret “corruptly” in § 1512(c) narrowly: it requires “at least an ‘improper purpose’ and an 

‘intent to obstruct.’” Montgomery, 2021 WL 6134591, at *21 & n.4 (collecting cases). 

“Corruptly,” imports, at least, an intent requirement because it is difficult to imagine how one 

could obstruct a proceeding “wrongfully” without in the first place intending to obstruct the 

proceeding. See United States v. McKibbins, 656 F.3d 707, 711 (7th Cir. 2011) (explaining that 

the intent requirement separates innocent from wrongful acts of obstruction).

8

 The additional 

requirement, acting with an improper purpose, is a straightforward translation of acting 

wrongfully. See United States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011) (“corruptly” 

means “with an improper purpose and to engage in conduct knowingly and dishonestly with the 

specific intent to subvert, impede or obstruct the” relevant proceeding); United States v. Gordon, 

8 The government appears to agree that § 1512(c) requires specific intent to obstruct a 

specific proceeding. It writes that “[a] conviction under Section 1512(c)(2) requires proof that 

‘the natural and probable effect of the defendant’s actions were to obstruct the official 

proceeding; that he knew that his actions were likely to obstruct that proceeding; and that he 

acted with the wrongful or improper purpose of delaying or stopping the official proceeding.’” 

Gov’t’s Resp. Def.’s Second Suppl. Brief at 6; see also Caldwell, 2021 WL 6062718, at *11 

(quoting government’s statement in that case that “the term ‘corruptly’ requires the government 

to prove that a defendant acted not only with intent to obstruct but also with ‘consciousness of 

wrongdoing’” (citation omitted)). 
27

710 F.3d 1124, 1151 (10th Cir. 2013) (same); cf. 18 U.S.C. § 1515(b) (defining “corruptly” as 

used in § 1505 to mean “acting with an improper purpose, personally or by influencing another, 

including making a false or misleading statement, or withholding, concealing, altering, or 

destroying a document or other information.” (emphasis added)).

9

 Construed to include a 

requirement of improper purpose, and despite the absence of the word “knowingly” to modify 

“corruptly,” the definition of “corruptly” in § 1512(c) is substantially similar to the 

“consciousness of wrongdoing” definition the Supreme Court laid out in Arthur Andersen, 544 

U.S. at 706. See Caldwell, 2021 WL 6062718, at *11 (holding that “corruptly” in § 1512(c) 

requires proof that the defendant acted with consciousness of wrongdoing). 

While narrower than the “boundless” definitions of “corruptly” underlying Andries’s 

vagueness challenge, such as “immoral” and “depraved,” Def.’s Mot. Dismiss at 11 (citation 

omitted), the “improper purpose” requirement might at first glance seem to risk the sort of 

subjective judgment that could create a vagueness problem. But a closer look reveals that 

interpreting “corruptly” to require proof of an improper purpose sets out a “comprehensible 

normative standard,” if an “imprecise” one—enough to pass vagueness muster. Bronstein, 849 

F.3d at 33. Arthur Andersen explained that the “conscious of wrongdoing” definition worked to 

9 Courts have phrased the requirement in different ways, see, e.g., Friske, 640 F.3d at 

1291 (referring to “dishonest” conduct); United States v. Edlind, 887 F.3d 166, 174 n.3 (4th Cir. 

2018) (noting district court’s instruction which required the defendant to be “conscious of 

wrongdoing”). But the Court “need not adopt a firm definition of ‘corruptly’” in order to resolve 

Andries’s facial vagueness challenge. See Caldwell, 2021 WL 6062718, at *11. The Court’s 

narrow task at this stage is to discern whether “corruptly” provides “no standard of conduct at 

all.” Bronstein, 849 F.3d at 1107. Any remaining vagueness concerns come from the “improper 

purpose” requirement; additional terms such as “dishonestly” (if they are part of the definition at 

all) are clear enough, as is “intent to obstruct.” See Caldwell, 2021 WL 6062718, at *11 

(“Defendants cannot complain that section 1512(c)(2) does not supply fair notice if it is 

construed to require proof that Defendants acted with a specific intent to do what the statute 

prohibits: obstruct an official proceeding.”).
28

limit § 1512(b) so that it reached only “those with the level of culpability we usually require in 

order to impose criminal liability.” 544 U.S. at 706 (cleaned up). In the context of § 1512(b)’s 

prohibition on “knowingly . . . corruptly persuad[ing]” with the intent to cause a person to 

withhold documents from an official proceeding, Arthur Andersen explained that the statute

drew a distinction between lawful persuasion to withhold documents and persuasion to withhold 

documents that was “inherently malign.” 544 U.S. at 703–04. Thus, “a mother who suggests to 

her son that he invoke his right against compelled self-incrimination, see U.S. Const., Amdt. 5, 

or a wife who persuades her husband not to disclose marital confidences” does not act with an 

improper purpose. See id. at 704. Nor is it improper for an attorney to persuade a client to 

withhold documents protected by the attorney-client privilege. See id. And, under “ordinary 

circumstances,” it is “not wrongful for a manager to instruct his employees to comply with a 

valid document retention policy,” including by shredding documents. See id.

“Corruptly” in § 1512(c)(2) serves the same function; it separates innocent attempts to 

“obstruct[], influence[], or impede” an official proceeding from those undertaken with a 

wrongful purpose. See McKibbins, 656 F.3d at 711 (“‘[C]orruptly’ is what ‘serves to separate 

criminal and innocent acts of obstruction’” in § 1512(c)). Like the examples in Arthur Andersen, 

one can picture scenarios in which an individual attempts to “influence” (and maybe impede or 

obstruct) for a proper purpose. Cf. United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990) 

(per curiam) (“An executive branch official, for example, might call the chairman of a 

congressional committee convened to investigate some wrongdoing and say, ‘We both know this 

investigation is really designed to embarrass the President (or a Senator), not to investigate 

wrongdoing. Why don’t you call it off’? The official surely intends to obstruct or impede the 

inquiry, but it does not necessarily follow that he does so corruptly. Similarly, a political activist 
29

might contact his representative and tell her that unless she stops spending her time pursuing a 

certain investigation rather than some other legislative endeavor, the activist’s group will oppose 

her reelection. Again, the activist is endeavoring to impede or obstruct the investigation, but is 

not necessarily doing so corruptly”), opinion withdrawn and superseded in nonrelevant part on 

reh’g, 920 F.2d 940 (D.C. Cir. 1990). Notice that the proper examples explored in Arthur 

Andersen and North all involved the vindication of legal rights (the privilege examples) or the 

pursuit of ends widely recognized as acceptable or ordinary in the relevant field (the document 

retention policy and lobbying examples); they also involved conduct widely acceptable and 

ordinary in the relevant field. Unusual or illegal conduct is a useful, if not necessary, indicator of 

improper purpose.10 Cf. Sandlin, 2021 WL 5865006 at *11 (in addition to covering normally 

legitimate actions undertaken with an improper purpose, the word “corrupt” also means 

“characterized by improper conduct (such as bribery or the selling of favors)” (quoting Corrupt

(adj.), def. 1(b), Merriam-Webster’s Collegiate Dictionary)). On the other side of these 

examples, there are a great many possible situations in which an individual plainly acts with an 

improper purpose, such as one who bribes a member of Congress to stop a hearing that might 

uncover the individual’s criminal wrongdoing, or one who threatens a member of Congress in 

order to delay a hearing so that the individual has time to trade on private information the 

hearing would make public. 

10 The Court does not foreclose the possibility that acting in an independently criminal 

manner may be another means, aside from acting with an improper purpose, of satisfying the 

§ 1512(c)(2) corruption element. See Sandlin, 2021 WL 5865006, at *12–14; Nordean, 2021 

WL 6134595, at *10–12. But because this means of satisfying the corruption element would not 

present any vagueness problem, see Sandlin, 2021 WL 5865006, at *14; Nordean, 2021 WL 

6134595, at *12, the Court focuses its analysis on the less clear-cut “improper purpose” means. 
30

In discussing these examples, the Court does not attempt to set forth with precision when 

an individual has or has not acted with an improper purpose. Rather, the narrow project of 

resolving Andries’s facial vagueness challenge requires the Court only to determine whether the

statute specifies any comprehensible standard of conduct. See Bronstein, 849 F.3d at 1107. A 

statute is not void for vagueness if its only flaw is that it “requires a person to conform his 

conduct to an imprecise but comprehensible normative standard, whose satisfaction may vary 

depending upon whom you ask.” Id. (cleaned up); see also Johnson, 576 U.S. at 604–05 (“As a 

general matter, we do not doubt the constitutionality of laws that call for the application of a 

qualitative standard . . . to real-world conduct; the law is full of instances where a man’s fate 

depends on his estimating rightly some matter of degree.” (cleaned up)). The requirement that a 

§ 1512(c)(2) defendant act with an improper purpose, that is, an inherently malign one that at 

least approximates “the level of culpability we usually require in order to impose criminal 

liability,” Arthur Andersen, 544 U.S. at 706 (cleaned up), is such a comprehensible normative 

standard. Cf. Caldwell, 2021 WL 6062718, at 11 (holding that “corruptly” in § 1512(c) requires 

at least “consciousness of wrongdoing” and that this interpretation saved the statute from 

constitutional vagueness). It does not require a “wholly subjective judgement[]” about what the 

law requires. Williams, 553 U.S. at 306. It will not be easy in every case to determine whether 

conduct meets this standard, but “the mere fact that close cases can be envisioned” does not 

“render[] a statute vague. . . . . The problem that poses is addressed, not by the doctrine of 

vagueness, but by the requirement of proof beyond a reasonable doubt.” Id. at 305–06. The 

existence of a substantial, core set of clear applications for “corruptly” in § 1512(c) means that 

Andries’s facial vagueness claim falls “far short of the ‘impermissibly vague in all of its 

applications’” standard, Crooks, 845 F.3d at 417; it is not a term that provides “no standard of 
31

conduct at all,” Bronstein, 849 F.3d at 1107. Given that there is a substantial core of conduct to 

which “corruptly” in § 1512(c) constitutionally applies, the Court will not take the drastic step of 

holding it facially void for vagueness. See Harriss, 347 U.S. at 618. “[T]here may be scenarios 

at the edges that present vagueness problems,” Sandlin, 2021 WL 5865006 at *10, but those 

must be addressed in the context of as-applied challenges.

Finally, Andries lists several other January 6 Capitol breach defendants who have also 

faced § 1512(c)(2) charges, and argues that “the facts and circumstances of each case vary 

drastically from each other and make it clear that the government’s charging decisions are 

inconsistent.” Def.’s Mot. Dismiss at 14. But “Supreme Court precedent teaches that the 

presence of enforcement discretion alone does not render a statutory scheme unconstitutionally 

vague.” Kincaid v. Gov’t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017) (Kavanaugh, J.) (citing 

United States v. Batchelder, 442 U.S. 114 (1979)). Set against the considerations the Court has 

outlined, any variance in government charging decisions cannot save Andries’s facial vagueness 

challenge. The Court denies Andries’s motion to dismiss Count I.11

11 In his reply brief, Andries for the first time invokes the First Amendment to explain 

that he “could not possibly have been on notice that he was ‘obstructing’ an ‘official 

proceeding’” because all he did, he says in his brief, was make certain statements and engage in 

protest, which is non-criminal protected expression. Reply at 4–6. This argument falls under the 

heading “Even if the Court determines that the Electoral Count is an ‘Official Proceeding,’ 18 

U.S.C. § 1512(c)(2) is Unconstitutionally Vague,” id. at 4, and it relies on assertions regarding 

Andries’s conduct, so the Court understands the references to the First Amendment as support 

for Andries’s Fifth Amendment as-applied vagueness claim, rather than as a distinct First 

Amendment overbreadth or as-applied First Amendment claim. The Court has denied the asapplied vagueness claim as premature, so has no occasion to address any of these First 

Amendment arguments. Other judges in this district have faced, and rejected, both overbreadth 

and as-applied First Amendment challenges to § 1512(c)(2) brought in connection with the 

Capitol breach. See Montgomery, 2021 WL 6134591, at *23–24; Mostofsky, 2021 WL 6049891,

at *12; Caldwell, 2021 WL 6062718, at *22; Nordean, 2021 WL 6134595, at *14. 
32

B. Count II, for Violation of 18 U.S.C. § 1752(a)(1), and Count III, for Violation of 18 

U.S.C. § 1752(a)(2), State Offenses

Counts II and III charge Andries with violating two subparts of 18 U.S.C. § 1752, which 

reads:

(a) Whoever--

(1) knowingly enters or remains in any restricted building or grounds 

without lawful authority to do so;

(2) knowingly, and with intent to impede or disrupt the orderly conduct of 

Government business or official functions, engages in disorderly or 

disruptive conduct in, or within such proximity to, any restricted building 

or grounds when, or so that, such conduct, in fact, impedes or disrupts the 

orderly conduct of Government business or official functions; 

. . . 

[shall be punished as provided in the statute.] 

(c) In this section--

(1) the term “restricted buildings or grounds” means any posted, cordoned 

off, or otherwise restricted area--

(A) of the White House or its grounds, or the Vice President’s 

official residence or its grounds;

(B) of a building or grounds where the President or other person 

protected by the Secret Service is or will be temporarily visiting; or

(C) of a building or grounds so restricted in conjunction with an 

event designated as a special event of national significance; and

(2) the term “other person protected by the Secret Service” means any 

person whom the United States Secret Service is authorized to protect under 

section 3056 of this title or by Presidential memorandum, when such person 

has not declined such protection.

18 U.S.C. § 1752. Section 1752(c)(2)’s reference to 18 U.S.C. § 3056 makes clear that the Vice 

President is an “other person protected by the secret service” for purposes of § 1752(c)(1)(B).12 

12 So is the Vice President-elect, 18 U.S.C. § 3056(a)(1), and the Superseding Indictment 

states that then-Vice President-elect Harris was also at the Capitol when Andries entered. 

Superseding Indictment at 2. However, in a supplemental brief, the government acknowledges 

that Vice President-elect Harris was not at the Capitol during the breach, though she was there 

before and after. The government therefore claims that Vice President-elect Harris was a person 

who “will be temporarily visiting” the Capitol, § 1752(c)(1)(B), at the time of Andries’s entry. 

Gov’t Opp’n Def.’s Suppl. Mot. Dismiss Counts Two and Three of the Superseding Indictment 
33

18 U.S.C. § 3056(a)(1). Count II charges Andries with knowingly entering and remaining in the 

Capitol and its grounds while it was a restricted area, in violation of § 1752(a)(1), and Count III 

charges him with engaging in disorderly and disruptive conduct in and within proximity to the 

Capitol with intent to disrupt government functions in violation of § 1752(a)(2). Superseding 

Indictment at 2. Both counts rely on the definition of restricted area found in § 1752(c)(1)(B), a 

“posted, cordoned off, or otherwise restricted area . . . of a building or grounds where the 

President or other person protected by the Secret Service is or will be temporarily visiting.” 

Andries argues that both of these counts fail to state an offense for the same two reasons. 

First, he says that the statute requires the Secret Service, rather than the Capitol Police, to restrict 

the relevant building or grounds, so the Capitol was not a restricted building or grounds within 

the meaning of the statute on January 6, 2021. Def.’s Mot. Dismiss at 14. Next, he argues that 

Vice President Pence was not “temporarily visiting” the Capitol on January 6 within the meaning 

of § 1752(c)(1)(B). Def.’s Suppl. Br. Supp. Mot. Dismiss Counts I, II, and III of the Superseding 

Indictment (Def.’s First Suppl. Br.) at 2–4, ECF No. 30.13 Both assertions are incorrect as a 

matter of law, so the Court denies Andries’s motion to dismiss Counts II and III. 

at 2 n.2 (“Opp’n Suppl. Mot. Dismiss”), ECF No. 31. But the Superseding Indictment charges 

that Vice President-elect Harris was visiting the Capitol at the time of Andries’s entry, not that 

she would be. Superseding Indictment at 2. Similarly, the government’s brief also alleges that 

two of Vice President Pence’s immediate family members, also Secret Service protectees, 18 

U.S.C. § 3056(a)(2), were at the Capitol, but the Superseding Indictment makes no mention of 

them. Opp’n Suppl. Mot. Dismiss. Once again, the Court must rest its evaluation of Andries’s 

motion to dismiss on the four corners of the Superseding Indictment. Because, as the Court will 

explain, the allegation that Vice President Pence was present is sufficient to state the offenses 

charged in Counts II and III, the Court does not consider the government’s claims regarding Vice 

President-elect Harris’s future presence or the presence of Vice President Pence’s family 

members in its analysis of Andries’s motion to dismiss. 

13 At oral argument, the Court gave Andries permission to file a supplemental brief 

raising this new argument. 
34

1. 18 U.S.C. § 1752 Does Not Require the Secret Service to Restrict the Protected Area

Andries says that for an area to qualify as a “restricted building or grounds,” 

§ 1752(a)(1), (2), the Secret Service must be the entity that restricts it or cordons it off. Because 

the Superseding Indictment does not allege that the Secret Service restricted the Capitol on 

January 6—the government acknowledges that the U.S. Capitol Police restricted and cordoned 

off the Capitol that day, Opp’n at 2–3—Andries claims that Counts II and III each fail to state an 

offense. Def.’s Mot. Dismiss at 14–17. Once again, the statute defines “restricted buildings or 

grounds” in this way: 

 (c) In this section--

(1) the term “restricted buildings or grounds” means any posted, cordoned 

off, or otherwise restricted area--

(A) of the White House or its grounds, or the Vice President’s 

official residence or its grounds;

(B) of a building or grounds where the President or other person 

protected by the Secret Service is or will be temporarily visiting; or

(C) of a building or grounds so restricted in conjunction with an 

event designated as a special event of national significance . . . .

18 U.S.C. § 1752(c) (emphases added). 

Absent from the text is any mention of a requirement that any specific entity must restrict 

or cordon off the area, let alone a requirement that only the Secret Service may be the restricting 

entity. Mostofsky, 2021 WL 6049891, at *13 (“The text plainly does not require that the Secret 

Service be the entity to restrict or cordon off a particular area.”); United States v. Griffin, 549 F. 

Supp. 3d 49, 56 (D.D.C. 2021); McHugh, 2022 WL 296304, at *19; United States v. Caldwell, 

No. 21-cr-28, Dkt. No. 415, slip op. at 4 (D.D.C. Sept. 14, 2021). The Superseding Indictment 

charges that Vice President Pence, a Secret Service protectee, was at the Capitol and that Andries 

entered an area within the Capitol and its grounds that was “posted, cordoned off, or otherwise 
35

restricted,” so it sufficiently states the restricted area element of the § 1752 offenses charged in 

Counts II and III. Superseding Indictment at 2. 

Andries’s argument to the contrary relies heavily on legislative history and policy 

considerations. But such factors do not permit the Court to add a requirement to unambiguous 

statutory text. When “the words of a statute are unambiguous, the judicial inquiry is complete.” 

Griffin, 549 F. Supp. 3d at 56 (quoting Babb v. Wilkie, 140 S. Ct. 1168, 1177 (2020)). In any 

event, Andries’s extra-textual considerations at best do not support his reading and at worst 

undermine it. He points out that when Congress passed § 1752 in 1970, it was concerned that 

“[a]lthough the Secret Service is charged with protecting the person of the President (among 

others) there is, at the present time, no Federal statute which specifically authorizes them to 

restrict entry to areas where the President maintains temporary residences or offices.” S. Rep. 

No. 91-1252 at 7 (1970); see Reply 8–9. The Senate Judiciary Committee explained that it was 

concerned with instances in which the Secret Service had to rely on a patchwork of state and 

local laws and inconsistent assistance from local authorities. Id. But that Congress may have 

envisioned the Secret Service as the primary restrictor of areas visited by the President and other 

protected officials, and that it may have primarily been concerned with presidential travel in 

areas within the control of state authorities, does not mean that it meant to make the Secret 

Service the exclusive restrictor. The statements in the Senate Judiciary Committee report are 

consistent with Congress’s apparent choice to leave the statutory text open-ended so that other

competent entities, such as the U.S. Capitol Police or state officials when they were capable of 

doing so, could restrict areas around protected officials. 

Andries has something of an answer to the legislative history’s failure to expressly limit 

restriction authority to the Secret Service; he notes that the Secret Service was formerly a 
36

component of the Treasury Department and the original version of the statute authorized the 

Secretary of the Treasury to “designate by regulations the buildings and grounds which 

constitute the” protected residences of the President and other Secret Service protectees—one 

category of locations subject to the statute’s coverage. 18 U.S.C. § 1752 (a)(1), (d)(1) (1970). It 

also gave the Treasury Secretary authority related to a second category of locations, the one 

analogous to the current statute’s “posted, cordoned off, or otherwise restricted area . . . where 

the President or other person protected by the Secret Service is or will be temporarily visiting”

definition at issue in this case, 18 U.S.C. § 1752 (c)(1)(B) (2018). The 1970 version covered 

“any posted, cordoned off, or otherwise restricted area of a building or grounds where the 

President or other person protected by the Secret Service is or will be temporarily visiting.” 18 

U.S.C. § 1752 (a)(1)(ii) (1970). It authorized the Secretary of the Treasury “to prescribe 

regulations governing ingress or egress to such locations.” Id. § 1752 (d)(2). Notably, even in 

this version of the statute, Congress did not say that only the Treasury Secretary could restrict the 

areas a protected official was temporarily visiting. Like the current version, the 1970 version 

said nothing about “who must do the restricting.” Griffin, 549 F. Supp. 3d at 55. Congress knew 

how to provide the Treasury with authority related to restricted areas—it gave Treasury the 

narrow authority to regulate the “ingress and egress” to such areas—but it chose not to locate the 

authority to restrict in the first place with the Treasury. 

Even if these references to the Treasury somehow suggested that Congress in 1970 meant 

to specify the Secret Service as the only entity that may restrict areas, they do not further 

Andries’s claim about the statute as it exists today. Congress removed all references to the 

Treasury in 2006 and did not replace them with any references to regulations of the Department 

of Homeland Security, the Secret Service’s new home. See McHugh, 2022 WL 296304, at *20 
37

(citing USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 

§ 602, 120 Stat. 192, 252 (2006)). To be sure, current law does assign the Secret Service some 

role in determining § 1752’s coverage—but in a limited way, and with regard to a definition of 

restricted area not relevant here. In addition to the definition of “restricted buildings or grounds” 

at issue here (where the President and other protectees are temporarily visiting), “restricted 

buildings or grounds” also include areas restricted “in conjunction with an event designated as a 

special event of national significance.” 18 U.S.C. § 1752(c)(1)(C). “When directed by the 

President, the United States Secret Service is authorized to participate, under the direction of the 

Secretary of Homeland Security, in the planning, coordination, and implementation of security 

operations at special events of national significance, as determined by the President.” 18 U.S.C.

§ 3056(e)(1). That the Secret Service is one authorized participant in security operations for

special events of national significance does not establish that it is the only entity authorized to 

help with such operations, much less that it is the only entity that may “restrict[]” “a building or 

grounds” “in conjunction with” such an event. 18 U.S.C. § 1752(c)(1)(C). Even if it did, this

would tell us nothing about the separate definition of “restricted buildings or grounds” at issue 

here, § 1752(c)(1)(B)’s provision for buildings or grounds where the President or other protected 

person is temporarily visiting. See McHugh, 2022 WL 296304, at *19. 

As it stands today, the statute defines restricted areas (as relevant here) in terms of their 

physical characteristics (“posted, cordoned off, or otherwise restricted”) and in terms of who is 

present within the area (Secret Service protectees). 18 U.S.C. § 1752(c)(1)(B). It does not say 

who must restrict the area, by, for example, cordoning it off or setting up signs prohibiting entry. 

Contrary to Andries’s suggestion, see Def.’s Mot. Dismiss at 17, this open-ended structure 

makes policy sense. It extends the law’s protection of Secret Service protectees to areas where 
38

sufficient physical restrictions may already exist, such as military facilities, or where partner 

federal or local authorities are willing to assist with setting restrictions (such as the Capitol 

Police on January 6), without requiring the Secret Service to set up unnecessary additional 

physical restrictions. See Griffin, 549 F. Supp. 3d at 54 (noting that the U.S. Park Police “share 

responsibility for the parklands surrounding the White House”). 

Andries protests that “if there is no designation as to ‘who must’ restrict the area, it could 

create another absurd result . . . that anyone claiming to be a part of law enforcement could post a 

sign designating an area as restricted and a criminal defendant could then be penalized for 

trespassing because they ‘willfully’ ignored the sign.” Def.’s Mot. Dismiss at 17. Assuming 

without deciding that Andries’s hypothetical about a private restrictor correctly states the law, 

the statute’s other elements, including that one of the few protectees of the Secret Service be in 

the area and that the defendant act “knowingly” and “without lawful authority,” see, e.g., 18 

U.S.C. § 1752(1), considerably limit the scope of potential liability in such a situation. 

Moreover, the Court is not convinced that it would be absurd in all cases to allow a private 

individual to set up the restricting barriers; imagine, for example, a presidential visit to a private 

home surrounded by fences and “do not enter” signs. Griffin, 549 F. Supp. 3d at 57 (highlighting 

such a possibility). Does the Secret Service need to duplicate these barriers in order to trigger 

the statute’s protections? In any event, any hypothetical unreasonable applications at the edges 

of the statute’s coverage would not license the Court to write into the statute a requirement that 

Congress omitted. Cf. United States v. Long, 997 F.3d 342, 356 (D.C. Cir. 2021) (“[C]ourts may 

not use the absurdity canon to set aside plain text unless the absurdity and injustice of applying 

the provision to the case would be so monstrous that all mankind would, without hesitation, unite 

in rejecting the application.” (cleaned up)); see McHugh, 2022 WL 296304, at *20 (addressing a 
39

similar argument and holding that “there is nothing absurd about criminalizing the breach of any 

barrier around a Secret Service protectee, and [that] the Court will not create its own atextual 

absurdity based on a fringe hypothetical that does not even remotely resemble the facts before 

the Court”).

2. Vice President Pence Was Temporarily Visiting the Capitol on January 6, 2021

Andries’s final argument is that Vice President Pence was not “temporarily visiting” the 

Capitol on January 6, 2021. 18 U.S.C. § 1752(c)(1)(B) (defining “restricted buildings or 

grounds” in part to include a restricted area “of a building or grounds where the President or 

other person protected by the Secret Service is or will be temporarily visiting.”). Judge Bates 

recently issued a thorough opinion rejecting the same argument, and the Court agrees with his 

conclusion. McHugh, 2022 WL 296304 at *2.

Andries cites dictionary definitions of “temporary” and “visit” to assert that “the phrase 

‘temporarily visiting’ connotes temporary travel to a location where the person is not normally 

living and/or working on a regular basis.” Def.’s First Suppl. Brief at 2. Fair enough, as a 

general matter. Temporarily means “for a time (only); during a limited time.” McHugh, 2022 

WL 296304, at *20 (quoting Temporarily, Oxford English Dictionary (2d ed. 1989) and 

collecting similar dictionary definitions). To “visit” means “to go to see or sojourn at (a place) 

for a particular purpose (as for business, pleasure, or sight-seeing).” Visit, Merriam-Webster 

Unabridged Dictionary, https://unabridged.merriam webster.com/unabridged/visit (last visited 

Feb. 24, 2022); see McHugh, 2022 WL 296304,, at *20 (collecting similar dictionary 

definitions). Thus, Vice President Pence was “temporarily visiting” the Capitol on January 6, 

2021 if he went to the Capitol for a particular purpose, including a business purpose, and for a 

limited time only. See McHugh, 2022 WL 296304, at *20. Plainly he did. He went to the 

Capitol for the business purpose of carrying out his constitutionally assigned role in the electoral 
40

count proceeding; he intended to and did stay there only for a limited time. Id. at 21 (noting that 

Vice President Pence left the Capitol in the early morning hours of January 7, when Congress 

finished certifying the count after delays caused by the breach). 

Andries protests that Vice President Pence was “working and meeting” at the Capitol on 

January 6 rather than “visiting it,” Def.’s First Suppl. Br. at 3, but as the definitions just 

discussed make clear, one can “visit” a location for the business purpose of working and meeting 

there. Andries also notes that Vice President Pence resided in Washington, D.C. and, as 

President of the Senate, held a permanent office at the Capitol. Thus, he argues “that a person 

generally cannot be said to be ‘temporarily visiting’ his own office building located 

approximately four miles from his home.” Def.’s Reply Supp. Suppl. Mot. Dismiss at 2, ECF 

No. 34; see Def’s First Suppl. Br. at 3. Andries’s proposed geographic limitation does not hold 

up; “obviously one can ‘temporarily visit’ the house next door, a neighborhood church, or a 

restaurant across town.”14 McHugh, 2022 WL 296304, at *21. And though there is some 

intuitive appeal to Andries’s suggestion that a person does not “visit” a place where he maintains 

an office, dictionary definitions of the term do not impose such a limitation. See id. at *22. 

Moreover, there are situations in which it would be quite natural to say that a person 

“temporarily visits” a place where she has an office: consider a CEO of an international 

corporation who normally works from headquarters in New York, but who maintains an office

for her occasional use at the firm’s satellite location in London. When the CEO travels to check 

14 In passing, Andries invokes federalism principles to suggest that the Court should not 

interpret the statute to duplicate the coverage of state criminal laws, which might suffice to 

protect the President while visiting a home-state residence outside of the District of Columbia. 

Def.’s Reply Supp. Suppl. Mot. Dismiss at 5. All of the charged conduct in this case took place 

in the District of Columbia, so any federalism concerns are irrelevant to the Court’s 

interpretation. Caldwell, No. 21-cr-28, Dkt. No. 415, slip op. at 4 (D.D.C. Sept. 14, 2021). 
41

in on her colleagues in London, she temporarily visits the London office, even if she works at her

reserve office while there. See Visit, Merriam-Webster Unabridged Dictionary, 

https://unabridged.merriam webster.com/unabridged/visit (last visited Feb. 24, 2022) (one 

definition of “visit” is “to come or go officially to oversee or correct the operation of”). 

Indeed, the legislative history—which Andries invokes for its references to the need to 

protect the President when he is outside D.C., see Def.’s Reply Supp. Suppl. Mot. Dismiss at 2–

3—suggests that Congress foresaw a similar situation involving the high-level officials § 1752 

protects, many of whom might maintain offices in multiple locations. The Senate Judiciary 

Committee explained that § 1752 was designed to remedy the fact that “there is, at the present 

time, no Federal statute which specifically authorizes [the Secret Service] to restrict entry to 

areas where the President maintains temporary residences or offices.” S. Rep. No. 91-1252 at 7 

(1970) (emphasis added). Like a President who maintains an office at his home-state residence, 

and like the CEO who maintains a reserve office at her firm’s satellite location, Vice President 

Pence held an office at the Capitol, but did not use that office as his primary, regular workspace. 

See McHugh, 2022 WL 296304 at *22 (“Although the [Vice President’s senate office] was ‘the 

only space in the city assigned to the vice president’ in the 19th century, the Vice President has 

had other spaces from which to do his or her job since 1909. At present, the Vice President’s 

working office is in the West Wing of the White House, and she also maintains a ceremonial 

office in the Eisenhower Executive Office Building.” (citations omitted)). Accordingly, even if 

it is “awkward . . . to describe an ordinary commute from home to one’s regular workplace as 

‘temporarily visiting’ the office,” McHugh, 2022 WL 296304, at *22, this case does not present 

such a situation. Vice President Pence was “temporarily visiting” the Capitol on January 6 

within the meaning of § 1752. Counts II and III state offenses. 
42

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss Counts I, II, and III of the 

Superseding Indictment (ECF No. 20) is DENIED. An order consistent with this Memorandum 

Opinion is separately and contemporaneously issued.

Dated: 03/14/2022 RUDOLPH CONTRERAS

United States District Judge